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SPEECH 



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MR. BARNARD, OF NEW YORK, 



THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, 



Eeceicber 29, 1843, and Jan'-ary 2, 5644. 



OTS 



THE BELL. TO REFUND THE PINE 



3MPMK1) UPON 



GENERAL JACKSON. 



WASHINGTON: 
1644. 



tip 



SPEECH. 



[The following speech on the bill to remit to General Jackson the amount of the fine imposed 
on him at New Orleans for contempt of court, was commenced in the House of Representatives, in 
Committee of the Whole, on Friday, the 29th of December, then interrupted by the adjournment 
of the House, amd continued on Tuesday, the 2d of January, and again interrupted by the opera- 
tion of the one-hour rule. No further opj)ortiuiity having occurred for completing the view of the 
subject intended to have been presented, this sketch is made to embrace some matter which was cut 
off in the manner stated. ] 

Mr. BARNARD spoke to llie following eflect : 

Mr. Chairman : Of course, I understand that this bill is to pass this 
House, and I am not at all surprised at the impatient zeal which we have 
seen manifested in its behalf. Of course, I understand also that the Eighth of 
January is at hand, which ''the party" have already determined to signal- 
ize here at the capital by public demonstrations, and that it is deemed import- 
ant this bill should be forced through, preparatory to the patriotic perform- 
ances of that day. I shall not stand long in the way, but I cannot consent 
to let this bill go to tlie vote without stating to the House my views of the 
nature and eflect of the measure here proposed. There are doubtless those 
in this House who are not familiar with the facts in relation to the fine im- 
posed on General Jackson, who will yet, as " true men," be expected to 
vote for this bill. It will do them no harm to know something of these 
facts before they vote. Besides, gentlemen had better moderate the violence 
of their sudden zeal for what they call an act of justice to General Jackson. 
It will look better. They have been rather long and late in making the 
discovery that the remission of this fine is an act of justice due from the 
country. It is twenty-nine years since the battle of New Orleans was 
fought, and for twenty-six years, or thereabouts, this remission was never 
once proposed ; and that is rather a long period for men's sense of injustice 
to sleep, especially towards a successful military chieftain, and one who 
has all the while filled a large space in the popular regard. And these 
Halls have not always been filled with the enemies or opponents of General 
Jackson. Why was not this act of justice thought of before the close of 
Mr. Madison's Administration, after the war ?"^ or in the Administration of 
Mr. Monroe .' Especially we may ask why it was neglected during the twelve 
years when General Jackson himsglf and his nominee held the reins of 
government? If motives of delicacy restrained his friends in the period of his 
own Administration — think of his friends being restrained by motives of 
delicacy I — what restrained them in the period of Van Burcn's Adminis- 
tration ? No, no ; gentlemen must not expect the country to give them 
much credit for the clamors in which they now indulge for justice to Gen- 
eral Jackson. They must not be surprised if they find themselves violent- 
ly suspected of a desire and design to produce a certain political efiect by 

• It is believed, if the correspondence between the Secretary of War and General Jackson at the 
period could be found, it would show that his conduct was condemned by the Government in no 
measured terms. Such a correspondence did take place, it is believed ; and it is not found in the 
War Department. What has become of it * 



this measure — to awaken anew the popular admiration tor the heroic deeds 
of the favorite old chief, in the hope of turning it to some good account in 
this particular juncture of their affairs. 

But let this pass. " The party"' is welcome toall they can make out of it for 
the approaching Presidential election. What concerns me much more nearly, 
as it should concern all who love their country, is to take care, as far as may 
be, that the Constitution shall be defended against every species of violent 
assault to which it may be subjected in this Hou.se. In my judgment, this 
bill, considering the ground on which it is made to stand by those who pre- 
sent and advocate it, if permitted to pass without some declaratory amend- 
ment or saving clause, must be regarded as aiming a deadly blow at the 
vital principle of this Government, and of all constitutional systems and all 
regulated liberty. 

The bill, to which it is evident enough no amendment whatever is to be 
allowed, provides that the sum of one thousand dollars, with the interest 
from the day when the fnie was imposed and paid, shall be — not remitted, that 
is not the word, for that would imply a pardon, which I might be ready 
enough to grant, but — shall be refunded or paid back to General Jackson- 
The amount of the fine is to be refunded, wilh interest. This is precisely 
what was done in the case of Matthew Lyon, on v/Iioni a fine had been 
imposed under what is called the sedition law. It w-as ordered to be re- 
funded, with interest — a course which implied that, in the opinion of Con- 
gress, the fine had been wrongfully imposed, and the money wrongfully 
received and retained. The same thing is implied in the present bill. Nor 
is this point left to impliration. 

The refunding of the fine imposed on the General is demanded mainly 
on two grounds, the substance and true effect of which I will state as 1 un- 
derstand them. 

The first is, that though it should be admitted that the civil jiower right- 
fully reigned at New Orleans, and not the military, yet the fin^! was illegal- 
ly imposed, the Judge having acted altogether without authority. To this 
it is added, that the Judge, having acted in his own cause, acted vindict- 
ively and oppressively. 

The other ground taken in the case is this : that General Jackson had 
committed no offence against the Constitution and laws of the country or 
the public authorities, since he had himself suspended all civil authority and 
government in New Orleans by setting up the military power, under the 
name of martial law, as supreme and exclusive, which he had regarded as 
required by the necessity of the case ; of which necessity he was the sole 
judge, responsible of course only to the popular sentiment of the country. 

Mr. Chairman, I am sorry that it should have been deemed necessary by 
the friends of this bill to make an assault either on the character of Judge 
Hall or on the well-settled law of contempts. No sacrifice seems to be too 
great or too costly for them to offer before the shrine of their idolatry. Tlio 
able and learned gentleman I'rom Pennsylvania, who introduced this bill, 
(Mr. C. J. 1n«;ers()li,,) has written a book to prove, amongst oihi'r things, 
that courts of justice in general, and Judge Hall in particular, had no right 
to punish lor contem))i.s. And lie objects especially to tins power in the 
courts of the United States, because, as he maintains, they have no conmion 
law jurisdiction. Now, sir, my answer to this is, that tlie right to punish 
for contempts is not so much a connuon law right as it is a power infierent 
ID the constitution of every court, just as the same power is inherent intlie 



constitution of this and of every parliamentary body. That is the well- 
considered and well-established doctrine of the Supreme Court of the Unit- 
ed States, as any gentleman may see by turning to tlie case of Anderson 
and Dunn, which originated in this House. It is a power incident to the 
authority granted to or possessed by every court. It is a principle of com- 
mon sense, as well as of universal law, that when any power or authority 
is granted, whatever incidental powers are necessary and proper for carry- 
ing the granted power into effect go along with it. Thus every court must 
necessarily have the power to protect itself against violent interruptions or 
disturbance, and to enforce obedience to its lawful commands. Instances 
of abuse of the law of contempts have no doubt existed ; but that is a poor 
argument to ofter against the existence of the law : and a judge is no more 
justified in assuming a jurisdiction not belonging to him under color of this 
power, than he is in assuming any other jurisdiction not within his compe- 
tency. 

But, sir, in the case of the courts of the United States, the power to pun- 
ish for contempts has, as we all know, been confirmed by express statutes. 
It is found in the judiciary act of 17S9, passed in the first year of the Gov- 
ernment. And, at a later period, in 1S31, after an instance of abuse of 
the power in the case of Judge Peck, and for which he was subjected to 
impeachment and trial, a declaratory act was passed defining the authority 
of courts to punish for contempts. The authority exercised by Judge Hall 
in the case before us, though long before the act last referred to, was strict- 
ly within the definition and limitations of that act. 

At the period v.dien the offences of contempt, for which summary pun- 
ishment was inflicted, were committed by General Jackson, Judge Hall 
was holding a regular term of the District Court of the United States for 
the District of Louisiana, On the 4ih of March, 1S15, which was Satur- 
day, the Court was in session, and a cause on the calendar was regularly 
heard. On the same day, two causes were specially assigned for trial — 
one to be heard on the following Tuesday, and the other on Wednesday. 
Before this time came, however, the course of justice was forcibly obstruct- 
ed by General Jackson. 

On the 5th of March, Mr, Louallier, a Senator in the State Legislature, 
a citizen of Louisiana — not a soldier — was arrested by a military order of 
General Jackson, placed in close confinement, and held to answer with his 
life for having dared to send to a public newspaper in the city of New Or- 
leans a communication complaining of an act of tyranny on the part of the 
General towards certain French inhabitants of the city. Upon application, 
which was immediately made to Judge Hall, at chambers, founded on the 
proper petition and affidavit, a writ of habeas corpus — that great writ of 
English and American liberty without which no nation on earth ever hasbeen 
cr can be free — was ordered to issue, to be directed to General Jackson, 
commanding him to produce Louallier before the Judge the next day, and 
to show the^cause of his arrest and detention. The order for this purpose 
was made on the back of the petition and affidavit, which had been filed 
in Court, and which had thus become a part of the records of that tribunal. 
Of course it was the duty of the clerk to make out and issue the writ. As 
an act of courtesy to General Jackson, and to give him an opportunity vol- 
untarily to retrace the audacious step he had taken, the Judge directed that 
notice should be immediately given him of the order he had made. This 
act of courtesy was answered by a military order for the arrest of Judge 



Hall, which was promptly obeyed and executed by an armed force of sixty- 
men, commanded by a field officer. At the same time, which was on the 
evening of the same .^th of March, General Jackson sent one of his military 
aids to Mr. Claiborne, the clerk of the District Court, with a written com- 
mand to deliver up to him the order which had been made by the Judge 
for the issuing of tlie writ. Mr. Claiborne had the courage to refuse to ac- 
quiesce iu this high-handed interference, and chose rather to accompany 
the officer, with the paper in his own pocket, into the dread presence of 
the imperial commander. Unawed by the presence or the threats of the 
General, he calmly told him that he should do his duty, and issue the writ. 
General Jackson having then got the paper in his possession, by asking to 
look at it, forcibly retained it against the remonstrances of the clerk, who 
Avas dismissed without it. 

The object of all this violent proceeding was, no doubt, to prevent the 
issuing of the writ. With the Judge in close confinement, and the order 
for the writ in his own possession, he flattered himself that the course of 
justice was efl'ectually obstructed. He was mistaken. The writ was 
issued and placed in the hands of the marshal on Monday morning, the 
day on which it was returnable, who had the courage to serve it, although 
he had been significantly told by the General, the evening previous, that 
" he had shopped the Judge, and he would treat any person who might 
improperly meddle with his camp in the same manner." On the service 
of the writ, which happened to have been done at an hour later than that 
named by the Judge for the hearing — a circumstance in no manner affect- 
ing the validity of the process or the proceeding — General Jackson treated 
it with contemptuous disobedience. Louallier was still kept in confinement^ 
and on the sanie day was ordered for trial before a military tribunal, appoint- 
ed by the General. All this took place long after news of peace which, no 
body doubted, had reached New Orleans. Judge Hall was kept in close cus- 
tody for one week, when, under another military order of the commanding 
general, he was taken from the guard-house by a file of dragoons, igno- 
minously escorted through the city, and about four miles above it, and then 
set at liberty, with a written order not to return to New Orleans until peace 
should be offLcially proclaimed. 

On the 22d of March, Judge Hall, having returned to the city, formally 
opened his court, when an application was iinmexliately presented, on 
proper depositions, by the United States District Attorney, I'or a rule on 
General Jackson to show cause why an attachment should not issue against 
him for contemjits. The rule was granted, and General Jackson appeared 
in court to answer on the 27th. On this occasion it was that the General 
offered in his deloncc the paper to M'liich reference was made by the gen- 
tleman from Louisiana, (Mr. Slidell.) This paper was deemed objec- 
tionable, and was not received. It was according to General Jackson's 
summary mode of doing business, but was not according' to the rules and 
practice of that court. Full latitude of defence, however, appropriate un- 
der a rule to show cause, was given, as the written rules laid down by the 
Judge will show. I will read them : 

" 1st. If till- i>i\rtv ohji'ct tii iho jiiris<lirtiop, tlic c<nirl is roaily to hoar." 

•' 2d. If tin- party'.-; iillidiiNit (•untain a dcniul of the faot.s sworn to, or if ho wish to show that 

the farts rliarpod do not in law anioinit to u contempt, the court is ready to hear." 

*• .'M. If tho answer c'ontain any thing as an apology to the court, it is ready to lioar." 

'* 4th. If tin- |iarly bo desirous to show that, liy the ("onslitution or hiws of tlic Fnitod State.", 

or in virtui- of his niihUiry conimis.sion, he had a riglit to act as charged in the affidavits', the court 

18 ready to bear."' 



On the 29th of March, after argument and full deliberation, an attach- 
ment was ordered to issue ; and on Friday, the 31st, General Jackson again 
appeared in court. Interrogatories were now presented and filed, accord- 
ing to the usual course of proceeding in such cases. They were addressed 
to the party accused, and he was required to answer them. The rule laid 
down by the Judge was this : " He may object to any of the interrogato- 
ries as improper, or he may deny the facts charged, and purge himself of 
the contempt on oath. His single testimony countervails that which 
may have been adduced.'^ General Jackson contemptuously refused to 
receive the interrogatories, or to make any answer to them. " Where- 
upon," says the record, "the court proceeded to pronounce judgment; 
which was, that Major General Andrew Jackson do pay a fine of one 
thousand dollars to the United States." 

Mr. Chairman, I shall not stop to reaffirm the power of the District Court 
of Louisiana to punish for contempts, and I shall leave the plain narrative 
of facts just given to speak for itself in regard to the contempts actually 
committed, and the entire propriety, impartiality, deliberation, and dignity, 
of the whole course of proceeding on the part of the Judge. The fine 
imposed was one thousand dollars — a sum which has been complained of 
as excessive and vindictive. Let the narrative of facts answer. It was 
the penalty imposed not for disobedience only to the great and sacred writ 
of habeas corpus, beginning with his outrageous conduct in regard to the 
order for the issuing of the writ, but for a forcible obstruction, with mil- 
itary array, of the whole course of justice in regard to that writ ; and the 
sum is precisely that imposed by statute in several of the States of this 
Union upon any Judge himself who shall refuse, on a proper application, 
to grant this same writ of habeas corpus. 

But the learned gentleman from Pennsylvania, (Mr. C. J. Ingersoll,) in 
his book on this subject, has argued against the power to punish for con- 
tempts in the courts of this country, because the Constitution declares that 
no person shall be held to answer for a cnme except upon a presentment 
or indictment of a grand jury. There must be trial by due process of law. 
Sir, since the Revolution of IGSS in England, this is as much and as ex- 
pressly the constitutional doctrine of tiiat country as it is the constitutional 
doctrine of this. We borrowed it from England. And yet this power to 
punish for contempts in a summary way has never, that I know of, been 
doubted in England. And nothing, I think, short of essential and subli- 
mated Democracy can lead any man to doubt it here. The truth is, that in 
case of contempts there is properly no trial — there can be none. The facts 
are taken only on the confession of the party accused, or on his failure or 
refusal to answer the matter alleged against him. Said Judge Hall, in this 
very case, '-he may deny the facts charged, and purge himself of the con- 
tempt. His single testimony countervails that which may have been 
adduced." The party is guilty or not, just on his own conduct or showing 
in the presence of the court. General Jackson refused to receive or an- 
swer the interrogatories presented to him, and the fine was imposed, of 
course. 

Bat, sir, gentlemen have not been content with impeaching the legal ac- 
curacy of Judge Hall in this proceeding. An attack has been made on his 
character as a man — an attack which I regret the more on account of the 
source from whicii it has proceeded. It comes from a gentleman (Mr. 
Slidkll) ably representing on this floor the Nevv- Orleans district of the 



8 

State of Louisiana, and the attack falls on the memory of a citizen of that 
city and State, no longer living to defend himself, and who died leaving no 
male relatives to step forth in vindication of his character and his fame. 
He held high office in that State, and I think I am warranted in saying that 
he adorned iiis jndicial station and honored the State of Louisiana, by his 
great learning, his remarkable powers, his sound principles, and his un- 
yielding integrity. I appeal to the testimony of those who knew Judge 
Hall personally, and who are therefore better witnesses of what he was 
than tiiose who testify from rumors which prejudice and malice have in- 
vented and put afloat. Mr. Brackenridge, of Pennsylvania, in a published 
letter relating to tlie matter which we have now in hand, says of Judge 
Hall: "I knew him well ; he was a modest, single-hearted, retired stu- 
dent, deeply learned, of unsuspected integrity, and as innocent as a child 
of all party intrigue or faction. He thought only of the honest and faith- 
ful discharge of his dutv. He had been taken by IMr. Jeflerson from the 
bar of Charleston, and, excepting two maiden sisters whom he supported, 
he had no family or connexion." An aged and venerable gentleman now 
residing in this city was the fellow-student of Mr. Hall at college in Penn- 
sylvania, where Hall's family th.cn resided, and his acquaintance with him 
was renewed at a late period of his life. Mr. Hall was sixteen years of 
age when he first knew him, and, from his uncommon powers and his at- 
tainments, he was the foremost man in college : and his whole subsequent 
career was answerable to this beginning. Though modest and retiring, he 
was distingiiished and honored throughout his life. Such I believe to have 
been the simple truth in regard to Judge Hall.* 

Yet the gentleman from Louisiana has deemed it necessary, in his zeal 
to serve General Jackson, to heap obloquy on the character and memory of 
this man. No doubt the gentleman believes the representations he has made 
to this House ; and I have as little doubt that his representations have done 
the greatest injustice to the memory of a most worthy, estimable, and hon- 
orable man and magistrate. The gentleman has been pleased to stigma- 
tize Judge Hall as a skulkitig coward, because, as he alleges, he did not 
cast olf his robes of otHce and enter the ranks of the army, to fight with 
the youngest and the bravest there, as if there was no courage worth com- 
mending (even if the gentleman were accurate in his lacts) except that 
which consists of a brute insensibility to danger and death. The gentle- 
man charges also that Judge Hall indulged in inlemperate habits. It may 
be so — many a great and good man has iallen in this way. But Judge 
Hall held his office I believe to his death, and no formal coiriplainl of this 
sort was ever preferred against him. And, finally, we arc told that Judge 
Hall was a foreigner: not an Irishman, or a Frenchman, or a Spaniard — 
that could ho endured : but he was an Englishman, and therefore he was 
liable to a violent suspicion of disafiection. Sir, this is a mode of argu- 



• It lias Ill-oil fouini, on an ox.nmiiiation of tlir reionis of the ■Senate, that .Mr. Hall was 
apiiouitetl, on the noMiinatjon of .Mr. .lelforson, in ISO'J, a Judjjo of the fifth Circuit Court of the 
United State.s, whieh conipristxl the Slatrs of North and iSouth Carolina and Georgia. Tliis 
wa-s under the aet of ISOl, organizinp; anew the court.-; of the riiited Stal;^, and wliieli was 
shortly afterwards repealetl. I j«>n the organizalion of a Territorial (Toverninent in tlie newly ac- 
quinxl Territoty of Louisiana, in 1801, Mr. Hall wa.s iiniuediately transfernnl to New Orli-ans, on 
the nomination of Mr. JelVer.st>n, as a Judpe. And, finally, on the udiin.-«ion of Lcuisiana into 
the Union, as a Stutp, in 1812, he was apiKjinted, on the nomination of Mr. Madison, to I lie judi- 
cial office which he held when the outrages referred to in the lexl were commuted ujwn him. 



9 

ment which suited (he short methods commonly adopted by General Jack- 
son with all who ever crossed his path or stood in iiis way ; but I must be 
allowed to say that the gentleman from Louisiana is capable of better 
modes of reasoning, and should not have adopted this. Sir, I have no 
more doubt of the patriotism and love of country of Judge Hall than I 
have of the patriotism of General Jackson, or of any friend of his, or of 
any supporter of this bill. I know not, I care not, on which side of the 
Atlantic he was born — he was an American citizen, and long had been 
one, holding a high judicial office under the Government, enjoying the 
confidence of Jefferson and Madison, and distrusted I believe by nobody. 
And all this vituperation now cast on him, all this effort to blast his name 
and memory, why has it been introduced into this debate ? If the gentle- 
man from Louisiana was willing that this bill should stand on its own 
merits, then this attempt to blacken the memory of Judge Hall was wholly 
gratuitous. If every thing he has uttered on this topic — so grateful as it 
evidently was to the genuine worshippers here of the iron-willed old man, 
who, whatever may have been his services to the country, (and I think 
them very great,) has done more in his lifetime, by his acts and his exam- 
ple, to plant disease and lingering death in the vitals of the Republic than 
all other living men — if all, I say, were historically true which the gentle- 
man has so eagerly communicated in regard to Judge Hall, how, I ask, 
does it help the argument in favor of this bill ? Let the gentleman put it 
into a logical shape, and see how it would stand ? He would say : This 
Judge inflicted a fine for contempt on General Jackson. This was legal 
and just, or it was not. But the Judge was an exempt and a non-combatant 
in the war ; he was also a generous liver, and is said now and then to have 
indulged in a glass of wine too much ; and, worse than all, he is reputed 
to have been born in England — therefore, the Judge had no right to inflict 
a fine on General Jackson for contempt. Jind it follows that General 
Jackson had a right \.6 trample on the writ issued by the Judge in behalf 
of the liberty of an American citizen, and to make his violent obstruction 
to the course of justice sure by the forcible arrest, imprisonment, and igno- 
minious banishment of the Judge himself! 

But, Mr. Chairman, I pass on to other matter of more importance. The 
main ground on which this bill is supported by its friends, and which has 
been stated by mc already, I must now take the liberty again distinctly to 
repeat. It is this: that General Jackson committed no ofience at New Orleans 
against the Constitution and laws of the United States, or the public authori- 
ties, because lie had himself, by virtue of his military commission, suspend- 
ed all civil authority and government in that city and neighboring country 
(except such as he might see fit from time to time to tolerate) by setting 
up the military power, under the name of martial law, as supreme and ex- 
clusive — such suppression and subversion of the civil power having been 
required, in his opinion, by the necessity of the case, of which necessity he 
alone had a right to judge. For this judgment, and his conduct under it, 
it must be added, he was responsible, not to the public authorities, for the 
case was one over which the Government had no constitutional jurisdic- 
tion, but to the popular sentiment of the country only. This I believe to 
be a fair statement of the position taken by the friends of this bill ; and I 
must say that, in my judgment, a doctrine more dangerous and fatal to all 
regular Government, to all constitutional forms, to all legal authority, and 
to every principle of civil liberty, has never been propounded in any coun- 



10 

try. Once establish this doctrine, as is now sought to be done, by a sol- 
emn formal legislative recognition, and constitution, laws, and liberty, ex- 
ist thenceforward by the forbearance of any and every military chief who 
may command an army in the field strong enough for the occasion, and 
which he may have the address to win to his ambitious and unhallowed 
purposes. 

The justification here offered in behalf of General Jackson is the same 
in substance that he set up for himself at the time : and by recurring to his 
declarations at that period, we shall se^; distinctly what kind of martial law 
it was that was insisted on then, and is justified now. 

In the paper which he offered in his defence before the Judge, General 
Jackson said that " he intended to supersede such civil powers as in their 
operation interfered with those he was obliged to exercise.'' He declared 
to Mr. Claiborne, the clerk of the District Court, in the evening shortly after 
the arrest of Judge Hall, "that his (the Judge's) conduct in the instance in 
question had brought him under the cognizance of his (the General's) gen- 
eral order [his order declaring martial law ;] that this was his (the Gener- 
al's) camp, [his order for martial law embraced ' the city of New Orleans 
and its environs,'] and that ' no person or power must or should be over 
him in it.' " And Mr. Duplessis, the United States marshal, informs us 
that, on the same occasion, the General said to him '• that he had shopped 
the Judge — and he would treat any person who might iniproperly med- 
dle with his camp in the same manner; and that so long as martial law 
continued he would acknowledge no other authority than that of the 
military." 

In all this there was no equivocation ; all was direct and open. Through- 
out his military district, as far as his command extended, or in such part 
of it as he saw fit, martial law, at his option and discretion, reigned su- 
preme. He had published his orders laying *' New Orleans and its envi- 
rons" under martial law; and we shall see him in one case stretching the 
'•environs" so as to make his martial law operate to the distance of a hun- 
dred and twenty miles. All this was claimed to be " his camp," and in 
'• his camp" no person or power should be over him — he would acknow- 
ledge no other authority than that of the military. If any civil powers in- 
terfered with those he felt obliged to exercise, they were or would be su- 
perseded. In short, the military power, which was nothing less than the 
unquestioned and unquestionable law of his own will — a law above all 
law — was the paramount, and, so far as he chose, the exclusive power. 

And, to comprehend the full enormity of this sort of martial law, we must 
not fail to distinguish between it and the military law of the country, as 
recognised by the Constitution and established by statutes — that military 
law, as distinguished from the civil power, prescribed exjircssly for the exi- 
gencies of war as well as for times of peace, and which is (he only law of 
arms known to the Constitution. Congress is authorized by the Constitu- 
tion ''to make rules for the government of the land and naval forces;" 
and also to provide <' for governing such jiartof the militia as may be em- 
ployed in the service of the United States." Under that authority statutes 
have been passed providing for these objects. That for the goverrnnent of 
the army prescribes a regular code, consisting of one hundred and one ar- 
ticles. This code is very carefully limited in its application to officers and 
soldiers of the regular army, and to the militia when in the service of the 
United States, including persons necessarily attached to the army, or to the 



u 

service in the artillery and corps of engineers, and receiving pay as such. 
No citizen, not a soldier, or attached to the army, ot' course, is subject to 
this code, or ever can be. It is forbidden by the Constitution. It is only by 
an exception in the fifth article of amendments that otiences " in cases aris- 
ing in the land or naval forces, or in the militia when in actual service," 
can be tried by courts martial, or otherwise than by " presentment or in- 
dictment of a grand jury." And hence it is, too, that no citizen, no person 
owing allegiance to the United States, can be tried as a spy. And so the 
military law prescribes. 

Now, General Jackson's martial law was something very different from 
all this. He ordered a citizen, as we shall see, to be tried by a military tri- 
bunal as a spy. And when his innocent victim was likely to escape by au 
acquittal, he published a general order in which he declared that " martial 
law, being established, applies, as the Commanding General believes, to all 
persons who remain within the sphere of its operations, and claims exclu- 
sive jurisdiction of all otiences which aim at the disorganization and ruin 
of the army over which it extends. To a certain extent, it is believed, it 
makes every man a soldier, &c. Every man, therefore, within the limits 
to which it extends, is subject to its influence." 

Here, then, was a complete overleaping, by one bound, not of the milita- 
ry code only, but of all regular government, of all constituted authority. 
Powers were assumed and actually exercised which Congress and the Ex- 
ecutive together could nothaveemployed. Congressmaysuspend the habeas 
corpus *' when, in cases of rebellion or invasion, the public safety may re- 
quire it," but Congress cannot suspend the Constitution itself, and all reg- 
ular government under it, by establishing that sort of martial law which 
was attempted by General Jackson. A proclamation of such martial law 
by Congress or the Executive would in itself be a dissolution of the Gov- 
ernment. It would be a revolution. And yet, what Congress and the 
Executive could not do, a General in the field may do ! Congress could 
not compel or authorize any citizen, not a soldier or attached to the army, 
to be tried by a court martial for any thing ; Congress could not subject an 
American citizen, soldier or no soldier, to be tried as a spy; yet all this 
may be done by a Commanding General ! 

The authority assumed by General Jackson at New Orleans was such 
as not only no President of the United States but no monarch of England 
could or would at this d.iy dare assume. In England, under her Kings of 
the Stuart line, this sort of martial law existed to a limited extent. The 
King raised armies, and prescribed rules and regulations for their govern- 
ment, by his own authority. He appointed or authorized courts martial 
for the trial of oifenees in cases arising iu the military forces. And he went 
further, and for what were called military offences — in cases of insurrec- 
tion or rebellion — he appointed military commissions or tribunals for their 
trial, though those offences were committed by persons in no way connect- 
ed with the army. One of the last notable examples of the sort was in the 
rebellion of the unhappy Duke of Monmouth, the son of Charles II and 
Lucy Walters. The revolution of 168S put an end to these abuses. The 
Bill of Rights, subscribed by the hand of William III, made express provis- 
ion against the raising of an army, or providing for its government, by the 
King, without authority of Parliament, and against subjecting any sub- 
ject not attached to the military forces to any kind of punishment by mar- 
tial law. Neither the King nor Parliament itself, which is said to be om- 



12 

iiipotent, can, under the Constitution of that country, at this day do what 
General Jackson did at New Orleans — abolish the civil power, and set up 
the military authority and martial law in its place. And to this day, so justly 
jealous are the British people ol the military power, that the army exists 
in England only by the authority of an act ot Parliament called the Mutiny 
act, which is never passed for a longer period than one year ; and the 
military code for the government of the forces rests on the same tempo- 
rary authority. 

^Ve have only to look into our American Constitutions to see that the 
same true Anglo-Saxon jealousy of the military power characterized our 
fathers. Almost without exception, wholly without exception, I believe, 
among the Old Thirteen — our State Constitutions take care to provide that 
the military shall be kept in subjection to the civil power ; and the sub- 
stance of the English Bill of Rights is adopted in the Constitution of the 
United States. 

But what Congress and the President, Parliament and the King, could 
not do. General Jackson has done. And there are those in an American 
Congress, too many of them, who can stand up to justify the proceeding 
in the face of the world. Charity obliges me to think that they are acting 
in some degree under a misapprehension of the true facts of the ease, and 
certainly under a blind devotion to a man and a party. Surely they have 
not fully considered what sort of martial law it was that was attempted to 
be enforced, or the period of time and the circumstances when the attempt 
was made. The original proclamation of martial law on the loth of De- 
cember, tliough without strict warrant of law, was nothing. As marking 
the spirit and energy with which General Jackson entered on the defence 
of New Orleans, it was such as every good citizen might have agreed to — 
and it is said Judge Hall himself and many others did assent to it. It placed 
New Orleans and its environs under a kmd of military inspection, to guard 
against surprise, and against the ingress and egress of spies and emissaries 
or agents actin? in behalf of the enemy. Let j?cntlemen look at the order 
for martial law, and the rules accompanying it, and tliey will see at once 
that (here was nothing in them to alarm the friends of law and order. Not 
an authority was proj)osed to be exercised but such as was compatible 
with the contitmed existence of the civil power, and such as luight have 
been used in aid of the civil power. Under that martial law, in point of 
fact, the laws did reign. The Legislature of the Slate was in session, and 
was not disturbed. The courts were not suppressed. Tiie Legislature 
had suspended civil proceedings in the courts for a limited time, but their 
criminal jurisdiction remained. The habeas corpus was not suspended ; 
nothing of the sort was attempted. Nor was this the martial law that was 
complained of, and which led to the fme imposed on General Jackson. It 
was another martial law, set up at a dilferent time, when all excuse or apol- 
ogy for its existence, even in the mildest form, had been taken away. It 
was a martial law which distinctly ])roposcd to abrogate, lor the time, at 
discretion, the whole body of Constitution and laws and every vestige of 
civil authority, and substitute in their place the military power — the per- 
sonal and irresponsible will of the commander of an army. It was a self- 
created dictatorship iliat was proposed and attempted — an absolute, unmit- 
igated, imiegulated, unrestrained military de^potism. This was what 
General Jackson attempted, and this is what gentlemen on this floor justify 
and applaud. 



13 

But, Mr, Chairman, the pica of necessity is interposed — the ready plea 
of all tyrants, and the most dangerous of all grounds on which to admit a 
justification of tyranny. And 1 desire to be understood distinctly, in the 
first place, as denying, in the broadest terms, that the crime of suppressing 
the civil power and government of the country in any quarter, by military 
authority, and the substitution of the military power, admits of justifica- 
tion by any plea, or on any ground of necessity whatever. Remembering 
always that this w^as precisely the kind and degree of martial law, so called, 
which was attempted at New Orleans in February and March, 1S15, I 
deny that martial law of that sort admits of any justification. 'I'he very 
plea of necessity admits, and, in my opinion, aggravates the crime. 

By the Constitution, Congress is forbidden to suspend tlie habeas corpus, 
unless in a given exigency. But if the habeas corpus were suspended, 
this would not suspend the civil power : and Congress is not authorized, 
in any exigency, to suspend the civil power, and set up the military author- 
ity in its place. No necessity could justify Congress in proclaiming this 
kind of martial law. To do it would be to attempt a military revolution. 
How, then, can a military commander justify the like attempt, on a plea 
of necessity ? 

I can imagine cases where in a limited district the authority of the Gov- 
ernment should be already overturned by invasion or insurrection; where 
anarchy reigns, or where a foreign enemy or a domestic foe has already 
set up a provisional or military power ; in which an American general 
being there with his army for the purpose of reconquering that territory, 
and bringing it back under the rightful authority of his country, might, in 
the mean while, wlierever he could maintain himself, and as far and as fast 
as his reconquest proceeded, govern by the law of arms and the military 
power, awaiting the return of security and tranquillity to surrender up his 
conquest to the Government to which it rightfully belonged. But that 
would be a very different thing from a direct and arbitrary suppression of 
the civil power where it actually exists, for the sake of setting up the mili- 
tary power in its place. This admits of no justification, and no conceiva- 
ble necessity ever can exist for it. No threat or prospect of invasion, how- 
ever imminent — no suspicion of disaffection, however violent, can make 
such a necessity. Surely it is quite soon enough for the Government to be 
overturned bjy the invasion or 6y the rebellion. But for a military com- 
mander, first to make a military conquest of his own country, or any part 
of it, on pretence of a necessity, in order to defend it against another con- 
quest from without or from within, is, in my judgment, equally bold and 
unprincipled. 

An American commander must defend the American soil with the arms 
and the means which the Constitution and laws put into his hands for that 
purpose. His army must be composed of his regular troops, the militia, 
and the volunteers. Exempts and non-combatants by law cannot be forced 
into the field. He has no authority, as General Jackson claimed, to make 
everi/ man a soldier. And if, with such forces as the Constitution and 
laws afford him, he cannot make good his defence, the Constitution expects 
him to yield. The Constitution contemplates the possibility that, in the 
fortunes of war, American cities and American soil may be surrendered — 
but it does not contemplate the possibility that Use// can ever be surren- 
dered ! 

No doubt the violation of individual rights by military commanders — 



14 

rights of person and of property — often takes place in time of war, and 
especially when hostile armies meet each other in the field — «oftener, much 
ofiener, I have the highest military authority for believing, than is at all 
necessary. But these are individual cases, and, whatever may be the ap- 
parent or real necessity, they are all cases of trespass for which the law 
holds the commanders personally responsible. The Government will re- 
lieve them, as it has often done, if it believes them to have been actuated 
by an honest sense of duly and a spirit of just forbearance, while it will 
leave them to suffer, as they ought, for all acts which have been marked by 
a wanton disregard of the laws, or by vindictiveness and cruelty. But in 
all this there is no analogy to the wholesale dealings of General Jackson 
under his mania! law, and the claim of right which he set up, and under 
"which he acted, and which he and his friends vindicate and justify — the 
claim of right wholly to suppress and abrogate for the time the civil au- 
thority and government of the country, and to make his \vill, backed by 
his soldiery, the law of the time and the place. This, I say again, admits 
of no justification. A necessity for such a proceeding is an impossibility — 
at least in this country. 

But, while I wholly deny that the crime of suppressing tlie Government 
and laws, and the substitution of martial law, after tfie manner of General 
Jackson, admits of justification on any plea of necessity whatever, I must 
also go further in this case, and deny that any apparent necessity or any 
probable cause existed to render that sort of martial law, at the period and 
the only period when it was attempted to be enforced, either important or 
in the least degree useful to the defence of the country. I mean to say 
that the plea of necessity was a mere pretence, set up to cover and defend 
acts in which an arbitrary and imperious disposition and will on the part of 
the commander, and mere personal malice and vindictiveness, might have 
been gratified, but which did not and could not tend in any way to ad- 
vance the public service or the public interests. This is my conviction ; 
and the course of the friends of General Jackson and of this bill has forced 
me into this plain avowal, and compels me to the argument and the proof. 
I do not shrink from the position and the task, though I should have been 
better satisfied not to have been obliged ever to name General Jackson 
again, except in connexion with those passages of liis career which all 
afjree have been both brilliant and valuable to the countrv. 

In order to understand what it was that is complained of in the conduct 
of General Jackson at New Orleans, and how little pretence of necessity 
there was to justify it, it is important that dates should be distinguished 
Avith critical accuracy. 

General Jackson arrived at New Orleans early in December. Tlie great 
battle was fought on the Sth of January, when the enemy met with a most 
signal and complete discomfiture. From that moment the enemy thought 
of nothing l)Ut escape. On the ISth of January, ten days after the battle, 
his shattered forces were embarked and disappeared. On the i21st, du"ee 
days afterwards, the main army of the victorious General was withdrawn 
from the lines below New Orleans, where the battle had been fought and 
won. On the next day after the disappearance of the enemy, the 19th, 
lie wrote himself to the Secretary of War in these terms : 

" Thero is, in my iiiiiui, wry little ilouht that Ivis (the inieniv's) last exertions have been made, 
in tliis quarter, at any rate for the present season. * * ' I believe you will not think mc too 
^angtlinc in the belief that Louisiana is Jiow clear of it^^ enemy." 



15 

On the 27th of January he addressed a letter to the Mayor of New 
Orleans, in which he declared liimself "deeply impressed, since his arrival,, 
with \\\c ujianbnity and patriotic zeal displayed by the citizens ;" and 
speaks of "the exalted sense he entertains of their patriotism, love of or- 
der, and attachment to the principles of our excellent Constitution." And, 
finally, upon his representation it was, no doubt, that Congress, on the 22d 
of February, passed resolutions expressive of their "high sense of the 
patriotism, fidelity, zeal, and courage, with which the people of the State 
of Louisiana promptly and nnanirnously stepped forth, under circum- 
stances of imminent danger from a powerful invading army, in the de- 
fence of all the individual, social, and political rights held dear by man." 

To all this it is important to add, that news of the treaty of peace con- 
cluded at Ghentreached New Orleans on the ISth of February ; throwing 
the whole city, as the same news did the country every where, into one 
universal ecstacy of joy. This news was brought from the British fleet, 
then off Mobile, where it had been obtained from a London newspaper 
received by way of Jamaica. It was not doubted by any body. General 
Jackson himself did not doubt that a treaty of peace had been concluded, 
for he so declared in a letter addressed to the Louisiana Gazette on the 
21st of February; though he suggested that peace must not be consid- 
ered as establislied until the treaty was confirmed — a suggestion made no 
doubt for the purpose of preserving, as far as possible, the order and disci- 
pline of the troops under his command until it should be proper to dis- 
band them. 

Now, let it be observed that in all this period, from the entrance of 
General Jackson into New Orleans, early in December, through all the 
Trying scenes of the invasion and the battle, and down to the last days of 
February, no enforcement of martial law was attempted which has been 
made the subject of complaint by any body. No such martial law in fact 
existed as was afterwards attempted to be exercised. The Constitution 
and laws reigned ; the public authorities were respected and obeyed. 
The habeas corpus was not susi>ended. It was not till the 2S/A day of 
February that the first act was committed in that series of outrages 
which proceeded on the ground that the laws had ceased to reign, and 
that the military power was supreme. And long before that day, as we 
have seen — that is to say, fifty days before — the great battle had been 
fought and won ; and, forty days before, the routed enemy had disap- 
peared from that quarter, which he did not again approach within one 
hundred and fifty miles ; and General Jackson had declared himself satis- 
fied on two important points: first, that the enemy's last attempt had been 
made in that quarter : and, second, that there was not the slightest ground 
to suspect the patriotism and fidelity of the people of New Orleans. Add 
to this, that before that day, (the 28th of February) — ten days before — the 
undoubted news of peace had arrived at New Orleans, and the citizens 
"were in the midst of rejoicings and festivities for lliat happy event. 

The strange eventful drama, then, of martial law, opened with the first 
act on the 2Sih of February. At the period of the invasion of Louisiana 
near New Orleans, there were resident in that city certain French citizens 
and subjects, enjoying certain personal and connnercial privileges under 
the treaty of cession. These French citizens, although owing no allegiance 
to the United States, volunteered to serve in tiie ranks of the American 
army, in defence of the city of their residence and atfection ; and they 



16 

behaved in iliat defence, as the General himself decLared in public orders, 
with distinguished bravery. Tliey were, of course, in the lines below 
New Orleans ; atid wlien tlie regular and main army was withdrawn from 
these lines, and placed in healthy and comfortable quarters in and above 
the city, which was done a very few days after the battle, (the 21st of Jan- 
uary.) these Frencli citizens — not soldiers by profession — were left in the 
field, and in the performance of regular military and camp duty. Many of 
them were left in exposed and unhealthy positions, and where great mor- 
tality prevailed. The historian of the period informs us that five hun- 
dred soldiers died at that time in the camps around New Orleans in a 
single month. These Frenchmen had fought bravely, however, and they 
were not now disposed to shrink from any proper or reasonable duty. They 
submitted quietly until after the news of peace had been received, when 
they began to think it was time they should be relieved. They applied, 
ihereibre. to the consul of their country, resident at New Orleans, for cer- 
tificates of French citizenship. Upon these they were of course exempt, 
and could no longer be retained in the ranks of the army. General 
Jackson countersigned their certificates, and they were no longer under his 
control or within his military jurisdiction. But though, by his own con- 
fession, he had not the slightest authority over them by virtue of his com- 
mission under the laws of the United States, and discharged them accord- 
ingly, yet he dared to issue a military order banishing all of them who 
held these certificates, together with the consul who had granted them, to 
a distance m the interior not short of Baton Rouge, which was one hun- 
dred and twenty miles from their business and their homes I This order 
was dated the 2Sth of February. 

General Jackson next proceeded to silence the press. On the 3d of 
INIarch an article appeared in the Louisiana Courier, reflecting with some 
severity on his conduct towards the French citizens. He sent" for the ed- 
itor, compelled him to giv^e up the author, and dismissed him with an order 
to publish no more such articles about him. 

General Jackson next proceeded to visit the autlior of the article in the 
Courier with his vengeance. Mr. Louallier, who was the author, was ar- 
rested and placed in military confinement on the 5th of March. This gen- 
tleman was an American citizen, of French origii!. He was a member of 
the Senate of Louisiana, and chairman of the Comniiitee of Ways and 
Means. When Governor Claiborne, early in December, had reconmiend- 
ed to the Legislatm-c to suspend the habeas corpus, in order that Commo- 
dore Patterson might be enabled to recruit seamen lor the American flotilla 
by impressment, Mr. Lonallier, to whose committee the message had gone, 
reported against the measure, and in its stead recommended that a bounty 
should be ofl'ered for seamen of twenty-four dollars a head, and that the 
Legislature should appropriate six thousand dollars for this purpose, to be 
placed at the disj)osal of tlie Commodore. This measure was carried, with 
an embargo on the shipj>i[ig in port lor throe days, and was completely 
successful. The habeas cori)us, however, was not suspended, and I be- 
lieve General Jackson never forgave Mr. Louallier for preventing it. 
Other )neasurcs, originating with Mr. Louallier in the Senate, prove him 
to have been a discreet legislator and a ])atriotic citizen. He had carried 
through an appropriation for supplies to destitute soldiers, and if is under- 
stood that he had personalty attended to the proper application of the 
fund. But lie iiad dared to question General Jackson's infallibility, and 
he placed his life in jeopardy by that act. 



17 

I have already stated the circumstances of the arrest of Judge Hail, 
which took place on the same day — the 5th of March. His offence was 
that of giving an order for a writ of habeas corpus in behalf of Louallier, 
which he could not have refused without the grossest breach of duty, sub- 
jecting him to impeachment. And here it was that the military power was 
first brought into violent and open conflict with the civil authority. The 
arrest of Judge Hall by an armed force of sixty men, with a major to 
command them, under the orders of the commanding general, was an act 
of war levied against the authority of the United Slates. Levynig war 
against the authorities of the United States is levying war against the 
United States ; and if an act of a treasonable character, according to the 
plain definition in the Constitution, was softened down to the offence of a 
contempt of court, and punished only by a fine of a thousand dollars, it 
seems to me that General .lackson and his friends should be the last to 
complain of the severity of the infliction. 

Having placed Judge Hall in confinement, and made sure of his de- 
tention by directing that no civil magistrate or oflicer should be allowed 
10 visit him. General Jackson made the necessary arrangements for bring- 
ing his victim, Louallier, to trial and execution. On the very next day, 
(the Gth of March,) he ordered a military tribunal to be organized for the 
trial of Louallier on charges involving his life. This tribunal was as ex- 
traordinary as the service they were called on to perform. It was not a 
court martial under any law or authority of the United States. If it had 
been a court martial under the law of Congress, it would have had thirteen 
members. This had only seven. A court martial under the law of Con- 
gress could only try soldiers, or persons attached to the army. Mr. Loual- 
lier was not a soldier, or in any way attached to the army. Even if a soldier 
by construction, under General Jackson's martial law, he was not a sol- 
dier of the regular army ; and a court martial composed of officers of that 
army had no authority by law to try him. Every olficer of this tribunal 
was of the regular army. Finally, he was directed to be tried as a spy! 
And no court ^iiartial under the law of Congress has authority to try a 
citizen, though he be a soldier also — one owing allegiance to the United 
States — as a spy. He was also directed to be tried for a libel on Gen- 
eral Jackson ! Such was tire tribunal, and such were some of the charges. 
There were seven charges in all preferred against Louallier. Mutiny was 
one of them : treason was another, under the head of disobedience of or- 
ders ! But the specifications under all the charges made the offence to 
consist of one and the same act — the publication of the article of com- 
plaint in the Louisiana Courier. 

It is remarkable that this tribunal, which was refractory enough to- 
wards the General to dismiss all the charges except one refusing to try 
Louallier upon them, should have selected the charge of treason as the 
one which It was competent to that tribunal to entertain, and should ac- 
tually have proceeded, as it did, to arraign and try a free citizen oi this 
free Republic u])on that charge. It is true it had the grace and courage 
to acquit him ol the absurd accusation, with the certainty of incurring, as 
it did, the fierce rebuke of the unappeased dictator ; but the independence 
of its members would have been better shown by an instant and indig- 
nant dismissal of every charge nn which Louallier was arraigned beiore 
ihera. ' . 

And here I wish again to direct the attention of gentlemen panicu;arly 



18 

to two or three dates, and to the facts connected with them. It was on 
the 6th of March that the order was issued for the trial of LouaUier. The 
tribunal met on the same day, was organized, and then adjourned. The next 
day (the 7th) exceptions were taken by I^ouaUier to the authority and ju- 
risdiction of the court. On the 9th these exceptions were decided upon; 
and on the lOlh of March, and not before, the tribunal (for I will persist 
in not calling it a court) proceeded to arraign the prisoner and to try him 
on the single charge which it had determined to entertain — he standing 
mute, refusing to plead or to make any defence whatever. On the next 
day, (the llth,) the acquittal was made. LouaUier, notwithstanding his 
acquittal, was kept in confinement till the \4th of March, and then dis- 
missed under a general order, heaping slander and abuse on his devoted 
head. It will be remembered also that Hall, who was arrested on the 5th 
of March, was kept in confinement till the I2fh, and on that day escorted 
by an armed band, with every mark of indiguity, four miles beyond the 
city, and there turned adrift. 

And now, what I want should be observed is this, that inforination con- 
firming the previous news of peace was received by General Jackson- on 
the sa77ie 6th day of March when the order was made for the trial of Lou- 
aUier ; and that information, though not official, was complete and satis- 
factory — even to General Jackson. The despatches which the express 
should have brought to the General from the Secretary of War had been 
left behind by mistake ; but he bore a communication trom the Postmaster 
General that he •'• was charged with despatches relative to the state of peace 
which had taken place between the United States and Great Britain." The 
General immediately, on the same day, despatched a letter to General 
Lambert, commanding the British forces oft' Mobile, notifying him of the 
information of peace which he had received. And, on tlie Sth of March, 
without waiting or caring to hear from General Lambert, he published an 
order discharging the militia — the levy en masse — declaring that he had 
received " persuasive evidence of peace." He received the ojicial news 
of peace on the 13th. 

It was, then, it will be perceived, after he had received *' persuasive evi- 
dence of peace,'' and after he liad discharged the militia on the strength of 
that joyful intelligence — after every pretence of danger, whether from inva- 
sion or from disaftection, was confessedly over, even if any had ever been 
apprehended by any body from either soince since the Sth of January, which 
I do not believe — // was after all this that General Jackson persisted in 
keeping both Mr. LouaUier and Judge Hall in strict confinement for many 
days; that he j)ersisted in subjecting Mr. LouaUier to trial by a military 
tribunal for his life, on the most frivolous and absurd charges — releasing 
liiui Jinally when he dared no longer to confine hun — after the official ucws 
of peace had been received — with opprobrium and abuse ; and that he of- 
fered his last indignity to the judicial power in the person of Judge Hall, 
by sending him forth, like a condemned criminal, under a guard of soldiers, 
to the punishnjcnt of exile from his home, his oUice, and his friends. 

Mr. Chairman, the conduct of General Jackson towards both the gentle- 
men just named stands without the semblance of justification, excuse, or 
apology. It was but the customary display of an imperious, overbearing, 
unlorgiving temper, which nevy could brook opposition or contradiction. 
His iniplacable wrath, which at first bnrned only towards LouaUier, was 
turned next in a direction which, happily, it could not pursue without pro- 



19 

yoking rebuke and punishment. That rebuke and punishment having bee 
administered, and the Constitution and laws vindicated, I should not ha\ 
been averse to relieving him, if he had asked relief, from the penalty whic 
his offences had provoked and merited. But he will not allow me, and Y 
■will allow no man to do any such thing on any terms consistent with tb 
supremacy of the Constitution and laws. Setting up at the time a justii 
cation which only enhanced and aggravated his offences, and which mad 
them not merely reprehensible, but in the highest degree criminal and dai 
gerous, he brings forward that same justification here before the assemble 
Representatives of the People, and insists that they shall adopt and san^ 
tion it. 

The purport and design of the bill now before us — naked as it is, and i 
which no amendment, no saving clause, will be admitted — and the objei 
of those who advocattj it, are in no degree equivocal or doubtful. Generi 
Jackson has himself declared, in a published letter, in substance — man 
gentlemen here will recollect it — that he would take nothing from Congre; 
which was not oflered in a way to exculpate and justify him fully in tl 
course which he pursued at New Orleans, and which led to the impositio 
of the fine. No ; he would starve first. And what he has demanded h 
friends have not been slow to accord to him. They mean that this bi 
shall be taken and deemed throughout the country as a solemn, formal, h 
gislative sanction of his course, and, of consequence, a legislative conden 
nation of the course of the Judge in imposing the fine. The whole argi 
ment or appeal of the gentleman from Louisiana, (Mr. Slidell,) as we 
as that oflered to the public by ilie gentleman from Pennsylvania, (Mr. ( 
J. Ingersoll,) tends to this conclusion. It is insisted that the General ha 
full warrant for every act he perlbrmed, and that Judge Hall deserve 
nothing but the contempt which he received at the General's hands. I 
short, Congress is asked now to entertain the cause as it stood before Judg 
Hall on the .Slst March, 1S15, and to review and reverse his decision. 

We are asked not to acquit General Jackson as right in intention, thoug 
possibly wrong in act, but we must go further, and pronounce in favor c 
the claim of unlimited, unmitigated personal power, above all Constitutio 
and laws, which, in terms, he set up at New Orleans. We are called o 
to make a solemn recognition of the rightful supremacy of the militar 
over the civil authority, wherever and to whatever extent a general in th 
field may see fit to proclaim and establish it ; to recognise the rightful ai 
thority of a military commander to suppress, for the time being, by fore 
of arms, the exercise of all civil powers — legislative, judicial, and execii 
live ; to abolish the whole body of civil government as far as the powe 
of his arms can go, and set up in its place the law of arms, which is th 
sovereign law of his personal, imcontrolled, and uncontrollable will. Tal 
about it as we will, disguise it as we may, this is the point to which thi 
bill brings us. We are told that this fine must be refunded, because Gen 
eral Jackson was right — not merely that he thought he was right, but tha 
he was right. And the refunding is insisted on^not as a pittance droppec 
for charity at the feet of an infirm, and perhaps needy old warrior, jus 
sinking to his last rest; not by way of pardon for an acknowledged of 
fence, whether because that offence had been more an error than a crime 
or because enough had been already done to vindicate the law ; but the fini 
must be refunded because it had been wrongfully imposed in the first in 
stance ; because the General had been guilty of no offence whatever, anc 



20 

he ought, therefore, to be relieved from the imputation and stigma of an 
unjust condemnation and punishment. He was right, exactly right, in 
what he did — right in the act, right in the purpose, and right in the ground 
which he has constantly insisted on for his justification. The same ground 
of justification is insisted on here, and it is to establish that very ground of 
justification (because, in truth, there is no other) that this bill is offered and 
urged upon Congress; and tiiat ground of justification is just what I have 
stated it to be, namely, the rightful supremacy of the mililary over the 
civil authority, in the unlimited discretion of every military commander in 
the field in time of war. On this ground expressly the vote of members on 
this floor is demanded. Nothing else and nothing short of this will do. It 
IS not enough that, overlooking his high-handed offences, this man has been 
twice elected President of the United States by a grateful, forgiving, and 
100 confiding people, bat he now demands tliat we shall formally adopt and 
ratify his worst conduct and his most dangerous cpinions ; that we shall 
partake of his guiii ; that we siiall become accessory to his crimes com- 
mitted against the verv life of the Constitution and Government of the 
country. For one, I shall not do i'. And for the honor of the country, 
for the sake of human Uberty, for the credit of that great conservative 
party to which it is my pride and pleasure to belong, I could have hoped 
that no man calling himself a Whig would put his hand to such a measure 
as this. No Whig, I know very well, will do so because he approves or 
means to ratify the conduct and opinions of General Jackson in the matter 
10 which the l)iU relates, or adopt or sanction the grounds on which his de- 
fence and justification are made to rest. But so the bill is intended to ope- 
rate, and so, if it passes, it will operate, in the viev/ of the great body of 
the American people. Wiih a proper declaratory clause, I would myself 
give back this money to General Jackson. Without that, I cannot do it. 
This fine now stands as the only just rebuke remainhig of record of any 
of tJie numerous acts of lawless disregard of Constitution and laws which 
have so much distinguished and illustrated his whole career. It is the only 
thing left to show that the people ca/i rebuke the tyranny of a successful 
soldier. I would say, let it stand, unless it can be remitted with a saving 
!o the Constitution and laws : and, at any rate, so far as my vote or iuflu- 
cijcc can go, it si: all suxnd. 



-<3 



THE CLAIM FOR INTEREST 

ON THE 

Advances of Massachusetls 

IN THE WAR OF 1812-15. 



Durintr the war of 18...2-15 with Great Britain. Massauhu- 
setts advanced for the use of' the United States $657,924.74, 
as audited and allowed at the War Department, and as paid 
by appropriations made by Congress in 1830 and in 1859. 

By the articles of separation between Massachusetts and 
Maine, in 1820, the claim tor these advances was divided 
between the two States, in the proportion of two-thirds to 
Massachusetts and one-third to Maine, and both States have 
Ireceutly assigned their rights to interest upon these advances 
to the European and North American Railway Company, 
which is constructing a road between Bangor, in Maine, and 
St. John, in New Brunswick, and thereby extending the 
whole railroad system of the United States to Halifax, Nova 
Scotia, and shortening the ocean voyage between Europe 
and America one-third. 

It has been the uniform practice of the Government to i 
pay interest to the States upon their advances made for war ' 
purposes. 

This was done in respect to their advances for the Revo- 
lutionary war, by the acts of Congress of August 5. 1790. 
and of May 31, 1794. By these acts interest was allowed to 
the States, whether they. had advanced money on hand in 
their treasuries or obtained by loans. 

In respect to the advances of States during the war of 
1812-15, a more restricted rule was adopted, viz : That 






States should be allowed inteiest only so far as they had 
themselves paid it, bv borrowing, or hhd lost it, by raising 
money by the sal« of interest-bearing funds. 

Interest, according to this rule, has b-eii paid to all the 
States, with the exception of Massachusetts, which made ad- 
vances during the war of 1812-15. 
y^ Virginia, U. S Statutes at Large, vol. 4, page 132. 
•^Maryland, " " *• " 161. 

c/Delaware, " " " " 175. 

t/New York, - " " '' 192. 

V/^ Pennsylvania, '* " " 241. 

^ South Carolina, " " •' " 499. 

In Indian and other wars the same rule has been observed, 
as in the following cases : 

Alabama, U. S. Statutes at Large, vol. 9, page 344. 
Georgia, ' " ' 9. - 626. 

Washington Territory, '" • II • 429. 

New Hampshire, " " 10 ' 1. 

During the Mexican war (sec Statutes at Large, vol. 9, 
page 23(5) a general provision was tnade in the following 
language : 

"That in expending moneys un<ler this act and the raso- 
" lution which it, amends, it shall be lawful to pay interest, 
" at the rate of six per centum per annum «»n all sums 
" advanced by States, corporations or individuals in all cases 
" where the Slate, corporation or individual paid or lost 
" interest, or is liable to pay it." 

What is now asked is, that Massachusetts and Maine should 
be repaid the interest which they have themselves actually 
p;(i<l, in corisoquence of having made advances for the use 
of the United States, and ac<;ording to the precise rule and 
measure which has b'XMJ applic<l tti all <tthor States in the 
aimc circumstances. 

This claim for interest couKl not be made until the ac- 
counts of Ma.ssachusetts for the principal of her advances 






were finally adjusted, and this was not done until 1859. 
The claim for interest was then immediately made, and has 
continued to be made to the present time, although, of 
course, it was not pressed during the late civil war. 

This claim has received the sanction of a select committee 
of the House, and of the committee of the House on Foreign 
Affairs. See House Report No. 119, First Session, 38th 
Congress, pages 18, 19, and 20, and appendix " E," pages 
79 and 80. Also. House Report, No. 7, pagt-s 18 and 19, 
Second Session, 39th Congress. 

The Senate Committee on Foreign relations have twice 
reported bills for the payment of this claim. See Senate 
bill No. 457, Second Session, 39th Congress, and Senate bill 
No. 45, First Session, 40th Congress. 



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